Crooks and Liars has a video of an exchange between Rep. Dana Rohrabacher (R-CA) and former Republican congressman Bob Barr from Georgia. (In other words, both of these speakers are Republican -- in case somebody thinks that this is a partisan issue).

The Power to Suspend the Constitution

In this exchange, Rohrabacher asserted that he is happy to have a President willing to suspend the Constitution and to break the law in order to save American lives. “I'm really sorry that we have this kind of evil enemy that wants to slaughter us, but I'm very happy that we have a president that, six months after they slaughtered 3,000 of our citizens, he decided to follow up on a lead that was given to our people by breaking up an al Qaeda cell in Pakistan, and followed through on that to make sure that there wasn't another imminent attack.”

To be honest, Rohrabacher did not confirm or deny the claim that these acts were illegal or unconstitutional. However, he did not deny them. In addition, when asked about the fact that this is unconstitutional, he said, "[I]f a nuclear weapon goes off in Washington, DC, or New York or Los Angeles, it'll burn the Constitution as it does."

So, Rohrabacher’s argument is that the President has the authority to suspend the Constitution with impunity whenever he feels that it is justified to do so.

One problem with this is, I do not recall reading that in the Constitution. I cannot find a statement in the list of Presidential powers that says, “The executive office will be vested with the power to suspend the Constitution, in whole or in part, at the sole discretion of the President when deemed necessary for reasons of national security.”

In fact, I suspect that any delegate to the Constitutional Convention who would have made such a proposal would have met with a rather unfriendly reaction. “Mr. Speaker, I would like to move that my good friend and colleague who proposed this Presidential power be removed from these chambers until he has had such time as to become sober.” Because, if they did not think that such a person was drunk, they would have likely had him tarred and feathered.

Yet, now, 225 years after the fact, Representative Rohrabacher is happy to have a President who thinks he has the authority to spend the Constitution, entirely or in part, at times of national emergency.

Destroying America

In addition to the above considerations, it is not possible to destroy America without destroying the Constitution. Terrorists may blow up a city, but we have suffered worse. It would take a half dozen atomic bombs to do damage proportional (per capita) to what we suffered during the Civil War.

Terrorists can attack our cities and our people, but nobody can actually attack America itself -- our heart and our soul -- except by attacking the Constitution. This does not imply that it should be preserves as-is until the end of time. However, it contains provisions for change - for Amendment - and "secret executive order" is not on the list of legitimate ways to amend the Constitution.

If we think it should be on the list -- if we think that this was an oversight on the part of the Founding Fathers, we have the ability to add it.

These points are also relevant specifically to Rohrabacher's claim that if an atomic bomb goes off in New York or DC that it will "burn the Constitution." Perhaps this is true. However, previous generations have suffered worse without burning the Constitution.

Previous generations have gone through relatively worse without burning the Constitution. I would hope that we are at least as good as they were. I would hope to make the terrorists understand that they cannot win even by destroying a city. They can only win by destroying the Constitution itself. This is something that they cannot do. The Constitution itself will not be destroyed unless we do this ourselves.

Is this what we are going to do?

Sunset Provisions

Rohrabacher also bragged, “Now, I have led the fight to making sure there were sunset provisions in the Patriot Act, for example. So after the war, we go back to recognizing the limits of government.”

There is going to be no such thing as “after the war”. Rohrabacher’s justification for these provisions is that there are people out there who want to slaughter us. There will always be people out there who want to slaughter us. If the mere existence of such people is enough to justify these provisions, then these provisions will always be justified, under Rohrabacher’s criteria for justification.

He might as well have lead the fight for a sunset provision that says, “These laws shall be rendered invalid the day that our Sun goes nova and destroys the Earth.” We will likely reach that date much sooner than the date at which nobody wants to slaughter us.

So, Rohrabacher really needs to answer the question of whether he wants to make the President’s authority to ignore the Constitution and break the law permanent. He has to answer whether he wants to adopt a new rule of government whereby a permanent state of hostility exists and, thereby, the President shall never again be bound by any Constitutional provision or law that, at the sole discretion of the President, he feels justified in breaking.

MichaelBanes: I agree on the significance of this issue. It is nothing less than the President using a national emergency to assume dictatorial powers. He might be a comparably benevolent dictator to date. However, the legal argumenst assume that the President is immune from legislative and judicial oversight.

I am writing a third post on this subject tonight, dealing with Attorney General Gonzales' defense of Bush's activities.

About Me

When I was in high school, I decided that I wanted to leave the world better off than it would have been if I had not existed. This started a quest, through 12 years of college and on to today, to try to discover what a "better" world consists of. I have written a book describing that journey that you can find on my website. In this blog, I will keep track of the issues I have confronted since then.